By Muna Ndulo
1. Zambia is in the process of negotiating a new constitution. The exercise is being spearheaded by a Technical Committee of Experts appointed by the Government of the Republic of Zambia and is in response to demands for a more democratic political system in the country. At the core of the demands is a call for the development of viable institutions of state that promote participation of the people in governance, transparency, and accountability. Criticisms about excessive concentration of power in the executive helped to place constitutional and institutional reforms on the national agenda. A key issue, therefore, in this constitution reform project is the demand for constitutional governance with restraint on presidential powers. The current constitution is perceived to create an “imperial presidency”—one that subordinates all institutions of state to itself. Awareness of this problem turned a spotlight on provisions in the current draft constitution that deal with presidential powers. Experience worldwide has shown that a presidential system is likely to lead to dictatorship and pose a danger for political freedom unless there is an effective system of checks and balances, undisputed rule of law, constitutionalism, free and critical public opinion, and a fair and democratic electoral system. It is against the background of these key conditions for development of a democratic state that this review undertakes to evaluate the Draft Constitution issued by the Technical Committee for public comment. The review looks at both the general and contextual issues involved in constitution- making and additionally makes specific comments on the constitutional draft.
2. “The issue in Africa…is not whether constitutions matter, but what it will take to develop a vibrant tradition of constitutionalism and a process of constitutional government” (Olowu, paper submitted to the Committee of Experts, Kenya Constitutional Process, 2010). This statement by a colleague in constitutional development work, Dele Olowu, identifies the key issue in Africa. Exceptions are countries such as Namibia, Kenya, and South Africa, which have already developed democratic constitutions. The late Professor Okoth Ogendo also made an important observation in this regard; he reminds us that “constitution-making must not be undertaken merely to achieve some short-term or sectarian goal; a broad and long-range view is necessary.” Constitution makers, he says, must understand that what determines the durability and sustainability of a constitution is not its intrinsic quality but the extent to which it is an accurate—or at any rate ideologically relevant—approximation or interpretation of a people’s history and is accepted as the preeminent societal norm and broad summary of social consent (Okoth-Ogendo, 2000).
3. My first observation is that the draft constitution is too long—it is at least three times the length of the present constitution. Some of the provisions, such as those on labor and industrial relations, pensions and retirement, environmental protection, natural resources, and consumer rights, do not belong in a constitution but are better dealt with in ordinary legislation. Scientific knowledge on these issues is constantly changing, and it is therefore unwise to freeze them into a constitution. The rights to a clean environment, to work, to health, and so forth are constitutional matters, but the details on how these rights will be protected belong to ordinary legislation. Good precedents for reference here would be the articulation of these rights in both the South African and Kenyan constitutions.
4. The constitution contains what are termed “national values”; it does not specify whether the national values, principles, and bases of state policy will be justiciable or not. The current Zambian constitution clearly states that similar provisions are not justiciable.
5. The draft constitution retains dictatorial presidential powers as contained in the 1996 constitution and as a matter of fact expands on them. Examples of expanded powers are those allowing the president to unilaterally divide and create provinces/districts or alter their boundaries. This appears to be an attempt to respond to the current controversy over the recent creation of provinces and districts. Additionally, the President continues to be involved in the appointment of virtually all important posts and is granted power to unilaterally establish and abolish public offices at his or her caprice. In most democracies, this power cannot be unilaterally exercised by the President. At the bare minimum such actions would require strict and effective Parliamentary approval.
6. There are some improvements in the draft. I would include the following as positive measures: dual citizenship; expansion of the bill of rights to include social, economic, and cultural rights; gender equality; subjecting customary law to human rights; setting election dates; dropping of the parentage clause in qualifications for presidential elections; and electing presidents with the majority of 50 percent-plus-one votes.
7. The preamble declares Zambia a Christian nation but also interestingly guarantees a person’s freedom of religion. This is clearly contradictory. To compound the confusion, in the preamble Zambia is declared a “multi-religious state,” again contradicting the declaration of the state as a Christian nation. In addition, Article 4 (2) declares Zambia a “multi-religious and multi-party democratic state.” Declaring Zambia a Christian state also contradicts Zambia’s treaty obligations under the International Covenant for Civil and Political Rights, the Universal Declaration of Human Rights, and the African Charter on People’s and Human Rights. All these instruments, to which Zambia is a party, guarantee freedom of religion. Further, the declaration in question contravenes a jus cogens norm. Freedom of religion is recognized as a “jus cogens norm” (General Comment 24, Human Rights Committee). Declaring Zambia a Christian state promotes the pernicious idea that non-Christians are in some way second-class citizens. It is also contrary to best practices in constitution-making. Not a single commonwealth or African country has declared itself a Christian state. In any event, declaring a nation a Christian state does not make it one. This approach is no different from that of states fighting to declare themselves Islamic at the expense of Christian and other religions. I would like here to echo the words of acclaimed Algerian anthropologist Mahfound Bennoune, he stated:” Because of my own experience with fundamentalists, I believe the separation of church and state represents major progress in human history. It is the only way you can promote tolerance, coexistence and democracy within a state…”
8. The declaration of Zambia as a Christian nation is from the 1996 constitution. However, unlike the 1996 constitution, in this draft “Christianity” is sneaked into the main body of the constitution, even into the bill of rights. For example the draft constitution now states that propaganda against Christianity is not protected speech. This is a clear attempt to undermine freedom of speech. The question is, how do your reconcile these ideas with the existence in the country of religious groups such as Hindu and Islam, to name a few, whose teachings are different from those of Christianity?
Supremacy of the Constitution
Article 7 deals with the applicable law in Zambia and lists a number of sources of Zambian law. It is fine except that it does not mention existing law, e.g. common law, which applies as a result of the English Extent of Application Act. Is the intention to repeal that Act? One approach could be to have a provision that states as follows: “All law in force immediately before the effective date of the new constitution continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this constitution.”
9. Article 1 deals with the supremacy of the constitution. It generally reflects best practice. In the interests of reducing the size of what is already a very lengthy document, article 1 (4) could be deleted. It adds nothing to the supremacy of the constitution, which is already well articulated in Articles 1 (1) (2) (3).
- Article 1 (5) seems misplaced. It should be in the section relating to the judiciary. In any case, would the other courts not have jurisdiction over matters arising under this constitution? Why should they not?
To be continued……
The Author Muna Ndulo is Professor of Law, Cornell University Law School Director, Cornell Institute for African Development Honorary Professor of Law, Cape Town University , Extra Ordinary Professor of Law, Free State University, South Africa